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Supreme Court of Victoria |
Last Updated: 2 April 2020
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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JUDICIAL REVIEW AND APPEALS – Application for judicial review – Decision to refuse consent for application to surrender building registrations pursuant to s 173B of the Building Act 1993 (Vic) – Where disciplinary action on foot related to use of combustible cladding – Whether decision made for improper punitive purpose – Whether manifestly excessive – Grounds not established - Decision to issue a show cause notice under s 182 – Whether decision issued without jurisdiction – Whether Authority seeking to apply current form of legislation to acts occurring when a different regulatory regime in place – Whether liabilities or rights affected – Contrary intention appears in any event – Application dismissed – Building Act 1993 (Vic) ss 173B, 178, 179, 182, sch 8 cl 4 – Interpretation of Legislation Act 1984 (Vic) s 14(2).
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Clyde & Co
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Ms K Chan
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For the Defendant
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Mr P Hanks QC
Mr G Ayres |
Legal Services, Victorian Building Authority
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1 The plaintiff (‘Mr Thomas’) seeks judicial review of two decisions of the Victorian Building Authority (‘VBA’) as follows:
2 The first issue before the Court is whether, in making the consent refusal decision, the VBA made an error of law on the face of the record or a jurisdictional error in that the consent refusal decision was made for an improper purpose and/or was manifestly excessive (ground 1).
3 Secondly, the issue is whether the defendant made the decision to issue the show cause notice ‘without jurisdiction’ in that the VBA is seeking to apply the current form of the relevant legislation to acts or omissions which occurred when a materially different regulatory regime was in force (ground 2).
4 The plaintiff abandoned an earlier suggestion that the reasons given for the consent refusal decision did not honestly state the true reasons for the decision.[1] Rather, the plaintiff accepted that the reasons for that decision were set out in the formal statement of reasons dated 25 September 2019 together with correspondence from the VBA of 18 July 2019 and 4 September 2019 (collectively, the ‘Reasons’).[2]
Background
5 Mr Thomas is currently a registered building practitioner in 3 categories: Building Surveyor, Unlimited; Building Inspector, Unlimited; and Engineer, Fire Safety. He has carried on business as a building surveyor and building inspector for some 44 years, and as a fire safety engineer for 20 years.
6 From around 2001, he and a Mr Nicholas became partners and established a company, Tanah Merah Vic Pty Ltd (trading as Thomas Nicholas), through which they carried on their business.
7 Mr Thomas subsequently resigned as a director and secretary of Thomas Nicholas on 31 January 2019, consequent on the development of health problems. This company later ceased operating on 31 March 2019.
8 On 4 February 2019, a fire occurred at 200 Spencer Street (‘the Neo 200 Building’).
9 By correspondence of 10 April 2019 from the VBA to Mr Thomas, the VBA provided a ‘notice to provide information to the Victorian Building Authority under s 227G of the Building Act 1993.’ The letter relevantly read as follows:
The VBA is currently undertaking an investigation to determine whether you, in your capacity as a fire engineer and a director of Tanah Merah Vic Pty Ltd (trading as Thomas Nicholas) (Company), complied with the Act and regulations whilst performing fire engineering consultancy services in relation to buildings which incorporate either aluminium composite panels (ACP) or expanded polystyrene (EPS) in the State of Victoria.In order to assist in this process, and pursuant to section 227G(1)(b) of the Act, I hereby require you to provide me with any and all documents in either your or the Company’s custody or control which meet the following description:
10 The information was requested before close of business on 17 April 2019.
11 Mr Thomas acknowledged receipt of that letter in an email dated 18 April 2019 wherein he advised that he was not a director of the company.
12 By application for surrender of building practitioner registration dated 24 April 2019, Mr Thomas sought to surrender his professional registrations. The grounds stated for Mr Thomas’ surrender were retirement and ill health.
13 On 23 June 2019, Mr Thomas’ registrations in the categories of building surveyor and fire safety engineer were suspended for failure to pay annual fees and provide insurance. Suspension in the category of building inspector followed later on 8 September 2019.
14 By correspondence of 28 June 2019 to Mr Thomas, the VBA enclosed a show cause notice under s 182 of the Act. It advised that the VBA proposed to take the disciplinary action set out in Part C on the grounds set out in Part B, and on the basis of the facts and circumstances set out in Part A, in respect of registrations held for fire safety engineer and building surveyor. It also invited him, in Part D, to show cause, on or before 26 August 2019, as to why the proposed disciplinary action should not be taken in the particular terms set out. This date has subsequently been extended, including by court order.[3]
15 Part A relevantly recited the following facts and circumstances:
In about 2004 the Subject Practitioner and/or Thomas Nicholas Fire Safety Engineers/Consultant Building Surveyors (Thomas Nicholas) were engaged to undertake fire engineering design work in relation to the construction of a building at 200 Spencer Street, Melbourne (the Neo 200 Building)....
On 4 February 2019, a fire occurred at the Neo 200 Building. It originated on a balcony on the western façade of the building on level 22. The fire rapidly spread to level 27 via the architectural fin before being extinguished by fire authorities.
Following the fire, the Authority commenced investigations into the conduct of practitioners involved in the construction of the Neo 200 Building.
As part of the investigation of the Subject Practitioner, building permit documents lodged with the Council under section 30 of the Building Act have been obtained. Notices to produce have been issued on the Subject Practitioner and on the offices of Thomas Nicholas. Various statements have been taken. An expert report has been prepared by Mr Grant Wang.
The Subject Practitioner advised through his lawyers, Clyde and Co, that he did not want to participate in an interview.
16 In terms of grounds, Part B set out five grounds. Grounds 1 and 5 referred to disciplinary action under s 179(1)(a)(i) of the Act and stated that between September 2004 and March 2006, Mr Thomas had ‘contravened regulation 15.2 of the Building regulations 1994 and/or regulation 1502(a) of the Building (Interim) regulations 2005’ in that he failed to carry out his work ‘in a competent manner and to a professional standard.’
17 Grounds 2, 3 and 4 cited disciplinary action under s 179(1)(b) of the Act, stating that the practitioner had engaged in ‘unprofessional conduct’ in respect of the fire engineering design work for the Neo 200 building.
18 Part C set out the proposed disciplinary action to be taken, and in each case proposed as follows:
(a) a reprimand under s 178(a) of the Act;(b) a direction to the practitioner to identify a course of training and to complete that course under s 178(b);
(c) the imposition of a penalty of $20,000 on the practitioner under s 178(d) (subject to the aggregate of the penalties under the notice not exceeding $40,000); and
(d) the suspension of the practitioner’s registration for six months.
Reasons[4]
19 By correspondence of 18 July 2019, the VBA wrote a letter entitled ‘Opportunity to provide a submission before the VBA makes a decision on your client’s application to surrender registrations’. It relevantly provided:
The purpose of this letter is to advise that the VBA is currently not satisfied that it is appropriate to provide its consent to the surrender of the above noted registrations.The following factors are relevant to the VBA’s consideration of this application:
20 Mr Thomas was invited to provide a written response by Thursday 8 August 2019. However, no response was received by 8 August 2019, or at all.
21 By 4 September 2019, the VBA then attached a letter refusing the application to surrender registration, which relevantly provided:
The VBA did not consent to the surrender of your client’s registrations as it was not satisfied that consenting to the surrender of the registrations would not facilitate him avoiding obligations under the building regulatory framework. This is due to several concerns, including that the VBA has recently commenced disciplinary action against Mr Thomas.
22 Mr Thomas subsequently requested a
statement of reasons, pursuant to 
s 8 
of the Administrative Law Act 1978
(Vic), for the consent refusal decision which were then provided by a
document dated 25 September 2019 (the ‘ Section 8 Statement of
Reasons’). After recording the relevant background and statutory
framework, it relevantly stated:
REASONS FOR THE DECISION
section 4(1)(a) , of protecting the safety and health of people who use
buildings and places of public entertainment.(a) section 173B of the Act gives the VBA the power to grant or withhold consent to an application by a registered building practitioner to surrender the practitioner’s registration;(b) although no considerations are prescribed by section 173B to guide the exercise of that power, the Act’s objective of protecting the safety and health of people who use buildings and places of public entertainment (see paragraphs 9(b) and 21 above) provides a basis for concluding that the protection of public safety and health is a consideration that the VBA can and should take into account when granting or withholding consent to the proposed surrender of a building practitioner’s registration;
(c) the VBA took into consideration that:
(i) Mr Thomas is the subject of disciplinary action by the VBA, which relates to his alleged involvement, as fire engineer, in design work in relation to the construction of the Neo 200 Building at 200 Spencer Street, Melbourne, which was the site of a fire on 4 February 2019, that spread rapidly from level 22 to level 27;(ii) the investigations that led to the disciplinary action against Mr Thomas commenced (and Mr Thomas was informed of that commencement) before Mr Thomas applied to surrender his registration;
(iii) consenting to the surrender application would mean that Mr Thomas could no longer be the subject of that disciplinary action by the VBA and would facilitate Mr Thomas avoiding obligations under the Act – in particular, the obligation to respond to disciplinary proceedings commenced under section 182 of the Act;
(iv) that result would not serve the objective of protecting the safety and health of people who use buildings and places of public entertainment, and would undermine the enforcement activities of the VBA in an area of considerable public interest and of critical concern to the VBA – the use of combustible cladding on buildings in Victoria; and
(v) that result could undermine the intended operation of section 178A of the Act and would be contradictory to the intention of legislative reforms that sought to enhance the enforcement and compliance functions of the VBA (emphasis added).
23 As highlighted by Senior Counsel for
the defendant, the Section 8 Statement of Reasons cited three main objectives:
first, the protection of the safety and health of people who use buildings;
secondly,
the undesirability of facilitating avoidance of obligations under the
Act, in particular, the obligation to respond to disciplinary
proceedings; and
thirdly, the enhancement of the enforcement and compliance functions of the VBA.
Statutory provisions[5]
24 Division 3 of Part 11 of the current
Act came into force on 1 September 2016 when the Building Legislation
Amendment (Consumer Protection) Act 2016 (Vic) (‘the Amending
Act’) relevantly came into
force.
25 The main purposes of the Amending Act, contained in s 1, included:
(b) to amend the Building Act 1993—
(i) to enhance consumer protection in relation to domestic building work by improving the regulation of building practitioners, particularly builders carrying out domestic building work and building surveyors; and...
(iii) to abolish the Building Practitioners Board and provide for its functions to be carried out by the Victorian Building Authority; and
(iv) to improve generally the operation and enforcement of that Act;
...
26 Section 1 of the Act provided that the main purposes of the Act included:
(a) to regulate building work and building standards; and...
(c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; and
(d) to regulate building practitioners;
...
27 Section 4(2) of the Act states that it is Parliament’s intention that in the administration of the Act, regard should be had to a number of objectives as set out in s 4(1). These objectives include to ‘protect the safety and health of people who use buildings and places of public entertainment’.[6]
28 Part 11 of the Act is headed “Registration of building practitioners.” Within Part 11:
• Division 1 contains provisions that make it an offence for a person to carry out various types of building work unless the person is a registered building practitioner;• Division 1A provides for registration on application to the VBA (and includes s 173B);
• Division 2 provides for codes of conduct;
• Division 3 provides for “Disciplinary proceedings and action” against registered building practitioners; and
• Division 4 provides for internal review and review by VCAT of “reviewable decisions”, which include decisions by the VBA to take “disciplinary action” against registered building practitioners under Division 3.
29 The VBA is established under s 193 of the Act. By s 197, its functions include:
(a) to monitor and enforce compliance with this Act and the regulations;(ab) to administer the scheme under Part 11 for the registration of building practitioners;
(ac) to supervise and monitor the conduct and ability to practise of registered building practitioners;
...
30 Within Division 1A of Part 11, Subdivision 4 is headed “Renewal and surrender of registration”, and includes s 173B, which provides:
173B Surrender of registrationA registered building practitioner may, with the consent of the Authority, surrender the practitioner's registration.
31 Section 173B was introduced by the Building Amendment (Enforcement and Other Measures) Act 2017 (Vic). The second-reading speech in relation to the Bill for that Act stated that the Bill ‘enhances regulatory powers to enable the VBA and other regulators to be more effective and provides stronger offence provisions with higher penalties to act as powerful disincentives to people who do the wrong thing.’ The Bill was also said to provide ‘greater regulatory powers in areas where they are needed, so that regulation can be targeted and the VBA is supported to be a more effective regulator.’[7]
32 Within Subdivisions 1 and 2 of Division 3 of Part 11:
(a) to reprimand the practitioner;(b) to direct the practitioner to do/not do a specified thing;
(c) to require the practitioner to successfully complete a specified course;
(d) to impose a penalty of (generally) not more than 150 penalty units in the case of a natural person, or 750 penalty units in the case of a body corporate;
(e) to vary a condition (other than a prescribed condition), or impose a condition, on the practitioner's registration;
(f) to suspend registration for not more than 3 years either wholly, or as a partial suspension in relation to a specified matter;
(g) to cancel registration;
(ga) to disqualify the practitioner from being a nominee director of a registered body corporate;
(gb) to disqualify a registered building practitioner from being a nominee director, or being otherwise involved in the management of a registered body corporate, of which they are an officer;
(h) to disqualify the practitioner for a specified period of up to 3 years from being registered in any category or class of building practitioner.
(a) the practitioner has contravened
(i) this Act or the regulations under this Act; or
...(b) the practitioner has engaged in unprofessional conduct.
33 Subdivision 5 of Division 3 is headed “Show cause process”. Within it:
(1) ... if the Authority reasonably believes a ground for taking disciplinary action against a registered building practitioner exists and proposes to take that action, the Authority must give the registered building practitioner a notice under this section (a show cause notice)....
(2) The show cause notice must state the following—
(a) that the Authority proposes to take disciplinary action;(b) the disciplinary action proposed to be taken;
(c) the registration in relation to which the proposed action is to be taken;
(d) the ground for the proposed action;
(e) an outline of the facts and circumstances forming the basis for the ground for the proposed action;
(f) an invitation to the registered building practitioner to show within a stated period (the show cause period) why the proposed action should not be taken.
(3) The show cause period must be a period ending at least 14 days after the show cause notice is given to the registered building practitioner.(4) The Authority, at the request of the registered building practitioner, may extend the show cause period stated in the show cause notice and in that case the extended period becomes the show cause period.
...
34 A decision by the VBA to take disciplinary action is reviewable on internal review and, if affirmed, by VCAT under Division 4 of Part 11.[9] Neither of the following decisions is reviewable under Division 4:[10]
Consent refusal decision
Ground 1(a) improper purpose
Plaintiff’s Submissions
35 The plaintiff submitted that the consent refusal decision was not made principally for the purpose of protecting the public. Rather, it was made for a punitive purpose which the plaintiff said was demonstrated by the evidence that the decision was made solely for the purpose of general deterrence.[11]
36 The plaintiff submitted that the purpose of disciplinary proceedings was entirely protective not punitive, citing Craig v Medical Board of South Australia[12] (‘Craig’), which showed that the protection of the public could include specific deterrence as well as general deterrence. He accepted, however, in the light of Craig, that general deterrence was a legitimate aspect of the protection of the public, and that protective orders may be incidentally punitive in effect.
37 He clarified (in reply) that he was not contending that the only legitimate purposes of disciplinary action are general or specific deterrence. Rather, that the sole basis upon which this decision could be rationalised was general deterrence.
38 The plaintiff further distinguished between purpose and effect, and submitted that the exercise of a discretion will be seen to have an impermissibly punitive purpose (as opposed to effect) where the sole or substantial factor for the exercise of discretion is the deterrence of others. He cited Re Sergi and Minister for Immigration and Ethnic Affairs[13] (‘Sergi’), for this proposition which he said had been cited in numerous cases. He further submitted that deterrence should have a subsidiary role only in the exercise of a protective jurisdiction.
39 In terms of the Act, Mr Thomas highlighted that there was no objective in the Act stating that a purpose of the VBA was to protect the standards of the profession. Rather, the overriding objective was the safety and health of users of buildings.
40 He highlighted that s 173B appears in a different place to the disciplinary provisions. However, he accepted that specific deterrence could justify action under s 173B, for example, if the practitioner was intending to return to practice within a short time. It may also be appropriate if elements such as dishonesty or fraud were present. None of these considerations were present here.
41 He further distinguished cases under statutory regimes for the regulation of health practitioners, highlighting that there was express legislative authority to take action in respect of formerly registered practitioners which did not apply here.
42 Overall, he submitted that there was no basis to use s 173B for the purpose of general deterrence given the absence of expression of Parliamentary intent; that there was no indication that s 173B was enacted so as to enable the VBA to maintain jurisdiction over practitioners who wanted to retire; and that the extrinsic material indicated that s 173B was enacted for the benefit of practitioners wishing to retire.
43 The plaintiff further submitted that the sole reason for the consent refusal decision in this case was for general deterrence. This was owing to factors including that: the alleged conduct occurred within a short period of time between September 2004 and March 2006; there was no repetition; the conduct is confined to one project which had been earlier assessed as compliant; the evidence that the plaintiff wishes to retire is unchallenged; and that protection purposes were equally served by a surrender of the plaintiff’s registrations.
44 He also submitted that the reasons did not disclose why nothing short of refusal to consent was sufficient. Nor was any evidence provided as to why this level of general deterrence was needed. He emphasized that there was no suggestion that he, subjectively, was trying to avoid disciplinary proceedings which was significant in circumstances where no challenge was made to his grounds given of ill health and retirement.
45 He also cited parts of a media statement released by the VBA dated 18 September 2019 entitled ‘VBA determined to fight fire engineer’s attempt to avoid disciplinary action’ which included a statement that Mr Thomas’ bid appeared to be a ‘deliberate attempt to avoid further scrutiny’ and that ‘no one should be allowed to walk away from their responsibilities.’
46 He submitted that this language showed that the purpose in refusing consent was solely for the purpose of sending a message to the public and the broader profession.
47 His submission was that the decision was not proportionate to its purpose and was not reasonably necessary for achieving the protective purposes. He pointed to a number of factors including the comparative benefit of direct measures going to safety of buildings; that he is not now the person with responsibility to rectify the building; that the serious issues regarding cladding had already been ‘brought home’ to industry players; and that substantial amendments had been made to the relevant legislation since 2004. He suggested that the ‘cause and effect’ was not established, i.e. that it was not established that other practitioners would take notice if Mr Thomas was held up as an example.
48 He concluded that the sole purpose was to punish Mr Thomas by way of general deterrence since no other purpose was served in circumstances where the public would be protected if he was allowed to exit the industry.
Defendant’s submissions
49 The defendant rejected the suggestion that the only legitimate purposes of disciplinary action are general or specific deterrence. Rather, other purposes may be served such as enforcing compliance with the legislation, acting in accordance with the purposes in the legislation, and meeting community expectations by showing that compliance will be enforced and the community will be protected. Each of these is achieved by the consent refusal decision which enabled the VBA to determine if Mr Thomas contravened the Act and to take disciplinary action if appropriate.
50 It was emphasized (citing Craig[14]) that the public may be protected by making it clear that certain conduct is not acceptable. A legitimate purpose of keeping the process going in this case is to provide assurance that the conduct will be investigated through to a conclusion.
51 In oral submission, Senior Counsel also emphasized that it was too early to talk about either specific or general deterrence because the consent refusal decision merely ensured that the investigation continues, at the end of which there might be a sanction or there might not.
52 The defendant also submitted that, even if the sole or substantial purpose of the decision was general deterrence, it did not follow that the decision was unlawful. Thus, a penalty may still be imposed if it is consistent with the purposes of the relevant legislation. Further, the decision of Sergi was distinguishable as it was concerned with the imposition of an additional punishment beyond that already imposed, and was decided in a very different context under the migration legislation. There was doubt if it was correct in any event.
53 In terms of s 173B, the defendant accepted that, although there was a wide discretion, it was subject to such limits as were to be implied from the subject matter, scope and purposes of the Act. In this case this was to be derived, inter alia, from the overarching purpose ‘to protect the safety and health of people who use buildings’ which it accepted was of primary importance among the s 4 objectives. It was also derived from the fact that the Parliament had committed responsibility for practitioner discipline and for monitoring and enforcing compliance with the legislation to the VBA under s 197.
54 It was submitted that at least one purpose of the requirement for consent in s 173B was to ensure that the VBA could continue a show cause process against a practitioner who seeks to surrender his or her registration. Practitioner misconduct would not be deterred if a practitioner could avoid the show cause process simply by surrendering her or his registration. Parliament had also specifically turned its mind to a situation where the practitioner’s registration was suspended (as here) and provided (in s178A(2)) that there is a three year limit for commencing a show cause process against a suspended practitioner. It would be anomalous if a suspended practitioner could avoid the implication of that limitation period by surrendering a registration.
55 In any event, the defendant submitted that the Section 8 Statement of Reasons showed that the VBA made the decision to further public safety and maintain public confidence. To characterise the reason solely as ‘general deterrence’ was reductive and did not pay sufficient attention to the reasons as expressed. Rather, as summarised earlier, Senior Counsel submitted that the Section 8 Statement of Reasons cited three main purposes.
56 The defendant submitted that there was no basis to infer that the decision was made for the improper purpose of punishing Mr Thomas, rather it was made for the reasons disclosed which relate to the appropriateness of the show cause process continuing i.e. it was not made for the sole purpose of general deterrence.
Analysis
57 Both parties took the court to a range of authorities concerned with the exercise of a disciplinary jurisdiction. In particular, the court was taken to the decision of the Full Court of South Australia in Craig, as well as the decision of the NSW Court of Appeal in Lee v Health Care Complaints Commission.[15]
58 Both cases concerned the exercise of disciplinary jurisdiction in the context of misconduct complaints against doctors. They therefore arose in the context of a very different statutory regime. It is also significant that they arose in the context wherein actual sanctions had been made against the relevant practitioner for suspension from practice. The current case is thereby immediately distinguishable given no sanction has yet been imposed; rather the VBA is seeking to exercise a power to continue a process which may or may not lead to a sanction.
59 Notwithstanding these caveats, the decisions provide some principles as to the appropriate purpose for the exercise of powers in a disciplinary context.
60 First, the purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law.[16]
61 Secondly, while considerations of individual deterrence and general deterrence have a very prominent role in sentencing criminal offenders, such considerations are subsidiary in the exercise of a protective jurisdiction.[17]
62 Thirdly, this is not to deny that such orders may be punitive in effect.[18] In fact, sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone was the relevant consideration.[19]
63 Fourthly, protection of the public may be achieved in various ways. As well as preventing people from practising, it may include orders which will secure the maintenance of proper professional standards.[20]
64 Finally, as highlighted by Doyle CJ in Craig, the public may also be protected by making it clear that certain conduct is not acceptable.[21] However, the emphasis is on the protection of the public rather than concepts of deterrence.
65 Insofar as the plaintiff relied on Sergi, this decision (and others cited[22]) arose in a migration context, not a disciplinary context. I do not consider that Sergi assists in the present case which is concerned with (potential) disciplinary action. I nevertheless accept, consistent with the second principle above, that concepts of deterrence generally have a subsidiary role in the exercise of a protective jurisdiction.
66 Returning to this case, both parties accepted that the provision of consent under s 173B was unfettered and therefore only to be limited insofar as this was found in the subject matter, scope, and purposes of the Act.[23]
67 The Reasons can thereby be assessed within the above framework to determine whether the decision was made for an improper purpose.
68 I reject the characterisation that the ‘sole’ basis for the decision is general deterrence which is simplistic and takes no account of the explicit reasons given (which were accepted as such by the plaintiff). The concept of general deterrence is also misplaced in circumstances where no actual sanction has been imposed (yet or, possibly, at all).
69 The matters contained in the media release are also unhelpful since, on the plaintiff’s own concession, the media release did not form part of the Reasons.
70 The various complaints about proportionality also do not demonstrate improper purpose. First, consistent with the concession of the plaintiff, the purposes are to be found in the Reasons themselves. Secondly, the matters raised generally go to the merits of the imposition of any sanction rather than whether the consent refusal decision was within power. Thirdly, to the extent necessary, I consider that it is ‘reasonably necessary’ to maintain registration (and preclude retirement) for the purposes of making someone amenable to a disciplinary regime. Such a decision can also be seen as furthering the protective function of the disciplinary jurisdiction in making it clear that certain conduct is not acceptable.
71 Returning to the Reasons cited above, they do not mention punishment nor general deterrence. Rather, as highlighted by Senior Counsel for the defendant, the Reasons, and in particular the Section 8 Statement of Reasons, identify that there were three main purposes motivating the decision-maker: first, the purpose of protecting the safety and health of people who use buildings; secondly, that giving consent would facilitate the avoidance of obligations under the Act, i.e. the obligation to respond to disciplinary proceedings already commenced under s 182; and finally, to further the enhancement of the enforcement and compliance functions of the VBA.
72 The plaintiff has therefore not demonstrated that the decision was made for the purpose of punishment, and certainly not for the ‘substantial’ purpose of punishment.[24]
73 I also consider that the substantial purposes for which the decision was made were ‘proper’ in the sense that they were in furtherance of a protective jurisdiction and within the subject matter, scope and purposes of the Act.
74 First, then, I accept that the decision under s173B was exercisable for the purposes of the protection of the safety and health of people who use buildings. Moreover, that this is an objective of ‘primary importance’.[25]
75 I also consider that the determination as to consent might be exercised to compel the obligation to respond to disciplinary proceedings under the Act, notwithstanding that this is not expressly stated, for the following reasons.
76 First, such a purpose is within the scope of the protective jurisdiction which can extend to maintaining standards and determining that certain conduct is not acceptable. The fact that no disciplinary power can be exercised against a non-registered builder also does not assist the plaintiff given it would undermine the Act, including s 178A(2), if a builder could withdraw from the disciplinary process (by surrendering registration) prior to any determination as to whether his or her conduct had breached relevant standards.
77 Next, although it is true that s 173B appears in a different Division to that dealing with disciplinary proceedings, there are strong indications in the Act that the protection of standards is a significant objective. Thus, the purposes of the Act include the regulation of building standards and the regulation of building practitioners.[26] The purpose of the Amending Act also included the enhancement of consumer protection ‘by improving the regulation of building practitioners.’[27] The functions of the defendant also include to supervise and monitor the conduct of registered building practitioners.[28]
78 Although it is true that there is a passage in the second reading speech for the Amending Act which suggests that a surrender provision was generally desirable for those retiring from the workforce (who could not previously surrender their registration),[29] there are a number of other references which suggest that effective regulation was important.[30] Thus, as indicated above, the second reading speech relevant to the Bill which inserted s 173B said that the Bill was to provide stronger offence provisions with ‘higher penalties to act as powerful disincentives to people who do the wrong thing.’ The Bill also provided ‘greater regulatory powers in areas where they are needed, so that the VBA is supported to be a more effective regulator.’[31]
79 Finally, I also consider that the power might be exercised to enhance the enforcement and compliance functions of the VBA. This is consistent with the protective purpose overall. It is also consistent with the purposes of the Amending Act contained in ss 1(b)(i) and (1)(b)(iv); the purposes of the Act in ss 1(a) and 1(d); as well as s 197 of the Act.
80 I am therefore not satisfied that the consent refusal decision was exercised for an impermissible punitive purpose. I also consider that the substantial purposes for which the decision was made were ‘proper’ in the sense that they were in furtherance of a protective jurisdiction and within the subject matter, scope and purposes of the Act.
Ground 1(b) Manifestly Excessive
82 The plaintiff submitted, in the alternative, that the consent refusal decision was manifestly excessive.
83 In written submission, the plaintiff submitted that the Reasons did not disclose why the VBA considered that nothing short of refusing to consent was sufficient. Nor was any ‘special correlation’ demonstrated such that the alleged conduct required general deterrence. The plaintiff further contended that there was no evidence showing that the decision to refuse consent involved the minimum appropriate regulatory force.
84 In oral submissions it was unclear whether this ground was to be pursued in its own right. Thus, it appeared to be conceded that it was not an independent ground, though it was then suggested that it was ‘two sides of the same coin.’[32]
85 In any event, insofar as the complaint was maintained, it is without merit. Thus, I accept the submission of the defendant that it is misconceived to characterise a decision to maintain a process of investigation as ‘excessive.’ In any event, it is also not ‘manifestly excessive’ to ensure that the show cause process continue given that serious issues of public safety were being raised.
86 The ground based on ‘manifest excess’ is rejected (insofar as it was maintained).
Ground 2: Show cause notice
Plaintiff’s Submissions
The Defendant made the decision to issue the Show Cause Notice without jurisdiction, in that:
88 The plaintiff’s primary submission in relation to the show cause decision is that, if the consent refusal decision is quashed, then the show cause decision falls away as Mr Thomas will no longer be registered (and will therefore no longer be amenable to the VBA’s jurisdiction).
89 Secondly, in written submission, the plaintiff submitted that he had an ‘accrued liability’ to disciplinary action under the form of s 179 as in force immediately prior to 1 September 2016. This attracted s 14(2) of the Interpretation of Legislation Act 1984 (Vic). It also breached the common law principle against retrospectivity. He further submitted that the transitional provisions were silent as to how disciplinary processes in relation to alleged conduct occurring before 1 September 2016 were to be dealt with.
90 However, in oral submission he appeared to clarify that the notice was invalid because it proposed to take disciplinary action that could not be taken under the Act as it existed between 2004 and 2006. In particular, he submitted that there was no power to direct a course of training or impose a fine of $20,000. He supported this submission with decisions of the Board. He further relied on the decision in Kennedy v Medical Practitioners Board of Victoria[33] (‘Kennedy’).
91 Thirdly, in further written submissions ‘in reply,’ he submitted that the notice was invalid because it referred to grounds under the current Act rather than grounds that would have been available as at the time of the alleged conduct (between 2004 and 2006). In so doing, he again cited Kennedy and suggested that the two grounds cited were not available grounds under the Act as at the period from 2004-2006, namely s 179(1)(a)(i) that he ‘contravened certain regulations’ and s 179(1)(b) that he engaged in ‘unprofessional conduct.’
92 However, in oral submission he accepted that both grounds did exist in the version of the Act in 2004-2006.[34] Nevertheless, the submission was that there was invalidity because the notice ‘mis-cited’ the provisions as being the current provisions, which did not match up with the 2004 version of the Act.
93 Finally, he submitted that, under s 184 of the Act, as it existed immediately prior to 1 September 2016, the constitution of the Board included at least one member appointed in respect of each category of registered building practitioner (with the possibility that an additional member might be appointed in respect of the category of builder).[35] He submitted that he therefore had an ‘accrued right’ to sufficient representation by members who were building practitioners registered under the Act in the categories of building surveyor and fire safety engineer, and that this ‘right’ should be preserved by s 14(2) of the Interpretation of Legislation Act 1984 (Vic). He cited Lee v Secretary, Department of Social Security,[36] in support of this submission, and submitted that the transitional provisions did not displace this right.
Defendant’s Submissions
94 The defendant rejected the suggestion that the show cause notice would ‘go’ if the consent refusal decision was quashed. Rather, there would remain an outstanding application to surrender and Mr Thomas would still be registered unless and until there was a consent to the surrender application.
95 The defendant also initially submitted that the matters raised in relation to the show cause notice were premature and should await the taking of any disciplinary action. However this was abandoned at the hearing.[37]
96 In relation to disciplinary action, the defendant submitted that no liability arose merely by engaging in conduct which might be a ground for exercise of the power, i.e. no completed liability arose until the Board actually exercised any of its disciplinary powers.
97 However, even if there was a liability, there was evidence of a contrary intention in the legislation. First, there was evidence in the transitional provisions which expressly continued the old provisions in relation to pending inquiries. This excluded the preservation of the old provisions for any other purpose. Secondly, the plaintiff’s submission was contrary to the broader purpose of the 2016 amendments. Thirdly, there was support for the proposition that even significant changes to sentencing regimes are to be applied if an offence was committed before the changes occurred.
98 The language of the current Act otherwise uses language exclusively referable to those found in that Act (e.g. referring to the ‘Authority’ (the VBA) rather than the Board). The decision of Kennedy was also distinguishable because it did not deal with sanctions. In any event, the matters raised could be put to the VBA as part of the show cause process, particularly having regard to the form of s 182E (which permits the VBA to take less serious action on the basis of representations made after service of the show cause notice).
99 In relation to grounds, the defendant submitted that the grounds were materially in the same form. Further, that the show cause notice cited the old legislation as to the content of the standard of conduct. There was therefore nothing to suggest that the VBA was imposing a standard that did not exist at the time as was the case in Kennedy.
100 In terms of the alleged ‘right’ to have matters dealt with by the Board, given the Board was abolished, it was impossible for Mr Thomas to have his matter dealt with by the Board. Otherwise, the transitional provisions (specifically cl 4(1)) provided that the only situation where the Board was permitted to continue was where the Board had, before the commencement date, commenced an inquiry which had not yet been determined. Given this did not cover Mr Thomas’ case, there can be no accrued right. Alternatively, if there was a right, it was plainly abolished.
Analysis
Preliminary
101 First, the submission that the show cause notice must ‘fall away’ is rejected. I have not quashed the consent refusal decision. In any event, I accept the defendant’s submission that, if it was quashed, the plaintiff would remain registered (and amenable to the show cause process) unless and until consent was given.
102 In terms of the submissions that there was an accrued right or liability, s 14(2)(e) of the Interpretation of Legislation Act 1984 (Vic) provides that where an Act is repealed or amended, the repeal or amendment shall not, unless the contrary intention expressly appears, affect any right or liability acquired, accrued or incurred under that Act.
103 Section 14 is informed by the common law.[38] Thus, in ADCO Constructions Pty Ltd v Goudappel,[39] the plurality observed that the New South Wales equivalent of s 14 mirrors the common law, as enunciated by Dixon CJ in Maxwell v Murphy[40] and Chang Jeeng v Nuffield (Australia) Pty Ltd.[41] In relevant respects, then, the two rules of construction do not differ in their scope or operation.[42]
104 The first issue in each case is therefore whether or not there is some right or liability, accrued or incurred. In this context, the focus is on rights and liabilities that have ‘crystallised’ and which are defined by reference to past events. Legislation will not be construed so as to affect such settled rights in the absence of a contrary intention.[43]
105 The second issue is, then, whether or not there is a clear expression of contrary statutory intention which ‘expressly’ appears. In this context, ‘expressly’ means ‘plainly,’ ‘clearly’ or ‘by necessary implication’.[44] This second step will be informed in this case by the terms of the relevant repeal and transitional provisions.
106 In terms of repeal, s 17 of the Amending Act provided that Division 3 of Part 11 of the Building Act 1993 ‘is repealed.’ Section 18 then provided detailed provisions for the transfer of the Board functions to the Authority. Section 25 further provided for new Divisions 2, 3 and 4 of Part 11 to be substituted for Divisions 2 (which dealt with inquiries of the Board) and 2A (which dealt with review of the Board’s decisions by VCAT).
107 The transitional provisions are found in schedule 8 to the Act. Part 1 of that schedule is entitled ‘Preliminary’ and includes clause 2 as follows:
2 General transitional provisions(1) This Schedule does not affect or take away from the Interpretation of Legislation Act 1984.
(2) If this Part provides that an old provision continues to apply to any matter or thing, then any regulation or other instrument having effect for the purposes of that provision also continues to apply to that matter or thing.
(3) This Schedule applies despite anything to the contrary in this Act.
108 Part 2 is entitled ‘Building Practitioners Board’ and contains detailed provisions about the operations of the Board, relevantly including:
3 Abolition of Building Practitioners Board(1) On the relevant commencement day—
(a) the Building Practitioners Board is abolished and its members go out of office; and(b) any subcommittee of the Building Practitioners Board is abolished and its members go out of office.
(2) Subclause (1) does not affect any other provisions of this Part—
(a) dealing with proceedings before the Building Practitioners Board; or(b) providing for the Building Practitioners Board to continue for certain purposes.
(3) If, under this Part, the Building Practitioners Board continues for certain purposes, the old provisions relating to the membership and procedure of the Board continue to apply for those purposes.4 Proceedings—Building Practitioners Board
(1) If, before the relevant commencement day, the Building Practitioners Board had commenced an inquiry into the conduct of a building practitioner but the Board had not determined the inquiry, the Board may continue and determine the inquiry in accordance with the old provisions.
(2) A determination of the Building Practitioners Board referred to in subclause (1) is taken—
(a) in the case of a decision under section 179 of the old provisions, to be a decision of the Authority under section 182E of the new provisions; or(b) in the case of a decision under section 180 of the old provisions, to be a decision of the Authority under section 181 of the new provisions.
(3) An application for a review that has been made under section 182A of the old provisions but not determined before the relevant commencement day may be continued and completed in accordance with the old provisions.(4) If the time within which an application for review could be made under section 182A of the old provisions had not expired before the relevant commencement day, the application may be made and dealt with in accordance with the old provisions.
(5) Any costs incurred by the Authority in administering this Part, including the remuneration and allowances of members of the Building Practitioners Board continuing and completing an inquiry or proceedings under this Part, must be paid out of the Building account.
...
109 These transitional provisions are clearly designed to provide a smooth transition from the old regime under the Board to the new regime under the VBA.[45]
Resolution
110 In terms of the first step, the suggestion that there was some ‘accrued liability’ to a sanction is rejected. There was no completed or ‘crystallised’[46] liability in circumstances where no disciplinary action had yet been taken. Nor had any liability become ‘complete’ by past events.[47]
111 In terms of grounds, in the decision of Kennedy, Kaye J (as his Honour then was) considered a notice sent by the Medical Practitioners Board that it had determined to conduct a hearing concerning whether the practitioner had engaged in ‘unprofessional conduct.’ His Honour declared the notice invalid on the basis that it cited a standard of conduct (‘unprofessional conduct’) which was different to that described under the relevant former legislation.
112 In so doing, he cited the principles above to the effect that legislation was presumed not to have retrospective effect absent clear expression. He found that, at the time of the conduct alleged against the plaintiff, that conduct was governed by ss 16 and 17 of the old Act (the Medical Practitioners Act 1970) which set the relevant standards expected of the plaintiff.[48] He further found that the relevant transitional provision in that case (s 102A of the Medical Practice Act 1994) operated to preserve those standards set out in ss 16 and 17 of the old Act.[49]
113 The question of the effect of the transitional provisions will be dealt with below. However, it may be accepted that, at the time of the conduct alleged against this plaintiff, that conduct was governed by the standards set out in the Act as in force at that time, consistent with Kennedy. As at that time, s 179 provided that the sanctions were enabled if there was a finding that the builder was ‘guilty of unprofessional conduct’ or had ‘failed to comply with this Act or the regulations.’ Both grounds are cited in the notice. It was also not suggested that the standard was in any way different in circumstances where the notice cites the older form of the regulations. The mere mis-statement of the provision numbers (if there be one) in such circumstances would not interfere with any accrued liability within the principles cited in Kennedy.
114 In terms of whether an accrued ‘right’ existed as to the identity of members of the relevant Board, it is relevant to consider the terms of the former regime prior to 1 September 2016. Under that regime, the Board had power to conduct inquiries into, and make disciplinary decisions with respect to, the conduct of registered building practitioners under ss 178 and 179. As highlighted by the plaintiff, the constitution of the Board was then provided for in s 184. Section 178(1) further provided for the circumstances in which the Board could conduct an inquiry about the conduct or ability to practise of a registered building practitioner.
115 Critically, in this case, no such inquiry had commenced prior to 1 September 2016.
116 Insofar as Lee v Secretary, Department of Social Security[50] is concerned, the applicant in that case had requested a waiver of the recovery of an overpayment. By decision of 13 December 1993, a delegate refused this request. On 23 December 1993, the applicant applied to review this decision following which the power to grant a waiver was amended such that the previously unfettered discretion was replaced. By a majority (Cooper and Moore JJ, Davies J dissenting), the Court determined that, for the purposes of s 8 of the Acts Interpretation Act 1901(Cth), the applicant had a right to have the refusal determined by reference to the power conferred in its unamended form and that there was no relevant contrary intention. In his analysis, Cooper J found that, as at 13 December 1993, the applicant had a ‘right’ to have her claim determined in her favour if the delegate had wrongly refused her claim.[51] She also had the ‘right’ to have the decision reconsidered given she had accessed review procedures prior to the repeal.[52]
117 The case is clearly distinguishable given the relevant provisions concerning waiver in that case had been actually accessed (i.e. the applicant had actually sought to take advantage of the relevant statutory provision prior to the repeal). This is to be compared with the current case where the Board had not even commenced an inquiry.
118 Thus, the only matter which occurred prior to 1 September 2016 was the relevant conduct of the plaintiff. However, the commission of such conduct does not give rise to a ‘right to sufficient representation’ on the body that would be charged with adjudicating if an inquiry commenced. In circumstances where no inquiry had been initiated, I am unable to be satisfied that any relevant ‘right’ has crystallised pursuant to s 14 or otherwise. Rather, the plaintiff merely had a power to take advantage of an enactment if and when an inquiry commenced.[53]
119 It follows from the above conclusions that no right or liability arises for consideration. However, even if I am wrong about the conclusions above, I consider that there is a clear expression of contrary statutory intention.
120 Insofar as an alleged accrued liability to former sanctions is concerned, I consider that the legislation clearly evidences an express contrary intention that any such ‘liability’ be abrogated. This presumes, without deciding, that any incorrect reference to sanctions invalidates the notice.
121 First, the provisions empowering the imposition of those sanctions (s 179) were repealed and substituted by Division 3, including s 182E. Secondly, insofar as the ‘old provisions’ are concerned, the transitional provisions provide for very specific instances wherein these provisions continue to operate. This includes cl 4(1) of schedule 8 which specifically provides that where the Board had commenced, but not determined, an inquiry before the relevant commencement date, the Board may continue and determine that inquiry ‘in accordance with the old provisions.’ There are also other references to ‘the old provisions’.[54] The specificity with which these provisions are dealt with suggests very clearly that the old provisions are to have no other ongoing effect. It would otherwise be unnecessary to make such specific provision for their continuing operation. Thirdly, there is the language of the current Act itself which refers to concepts that only appear in the current Act. Thus, s 182, in particular, provides for the VBA (not the Board) to give a show cause notice (not initiate an inquiry) if it reasonably believes a ‘ground’ (under s 179) exists for taking ‘disciplinary action’ (as defined in the current Act in s 178). It is noteworthy that the former s 179 did not even use the concept of ‘grounds.’
122 It is true that cl 2(1) of the transitional provisions provides that the schedule did not affect or take away from the Interpretation of Legislation Act 1984 (Vic). However, I am satisfied that the legislation, including the transitional provisions, evinces an express, clear manifestation of an intention to abrogate any accrued ‘liability’ to sanctions available under the former provisions by exhaustively providing for the circumstances in which the old provisions can operate.[55]
123 Such a view is consistent with that of McDonald J in Argyrou v Victorian Building Authority,[56] wherein his Honour considered that the only circumstances in which the provisions of Division 3 of Part 11 of the old Act apply to conduct engaged in prior to 1 September 2016 were those set out in cls 4(1), 4(3) and 4(4) of the transitional provisions.
124 I would make the same point in relation to ‘grounds.’ Thus, unlike the position in Kennedy, I consider that the transitional provisions, when considered along with the current form of the Act, evince an express intention that the current provisions prevail. This does not mean that different standards will necessarily apply. Thus, as is demonstrated in this case, s 179(1)(a) (which provides that the practitioner ‘has contravened’ the Act) can, as is alleged in the notice, refer to the Act (which is the same Act) as it applied at the relevant time. However, I am satisfied that the specification of the grounds is to be matched to the current form of s 179 consistent with what occurred in the notice in this case.
125 Finally, the suggestion that the plaintiff has some ongoing ‘right’ to an adjudication based on the previous composition of the Board cannot be sustained. Clause 4(1) of the transitional provisions of the Act provides, with great specificity, for the only circumstance in which the Board may continue and determine an inquiry (where it had already commenced). The Board is otherwise abolished with its members out of office (unless provided for in ‘this Part’).[57] Pursuant to cl 3(3), the old provisions relating to the membership of the Board also only continue to apply if the Board otherwise continues for certain purposes ‘under this Part’.
126 Such express provision is exhaustive such that there is no room for the application of the Interpretation of Legislation Act 1984 (Vic).[58]
Conclusion
128 The plaintiff’s third amended originating motion will be dismissed.
[1] See deleted particulars pursuant to paragraph 7 of the Third Amended Originating Motion.
[2] Transcript of proceeding, 19 February 2020, 28-9.
[3] See Order 2 of Kennedy J made 19 February 2020 which directs the defendant to extend the show cause period to 6:30pm on the day when these Reasons are handed down.
[4] See above n 2.
[5] The plaintiff accepted that the Building Act 1993 (Vic) as at 1 July 2019 (version no. 118) was the relevant version of the Act for the purposes of this case. See Transcript of Proceeding, 19 February 2020, 19.
[6] The Act s 4(1)(a).
[7] Victoria, Parliamentary Debates, Legislative Assembly, 7 December 2016, 4825-6, 4829.
[8] The Act ss 182C, 182D.
[9] Ibid s 184 (definition of ‘reviewable decision’ para (e)).
[10] Ibid s 184 (definition of ‘reviewable decision’).
[11] See in particular Plaintiff’s Outline of Submissions, 29 November 2019, 22; Plaintiff’s Outline of Submissions in Reply, 28 January 2020, 5.
[12] [2001] SASC 169; (2001) 79 SASR 545.
[14] [2001] SASC 169; (2001) 79 SASR 545, 555 [47].
[16] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, 553-4 [41] (Doyle CJ, Williams and Martin JJ agreeing); Lee v Health Care Complaints Commission [2012] NSWCA 80, [20], [31] (Barrett JA, Macfarlan JA and Tobias AJA agreeing), citing Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523, 546 [83] (Basten JA).
[17] Lee v Health Care Complaints Commission [2012] NSWCA 80, [31].
[18] Ibid [20.2], citing Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523, 546 [83] (Basten JA).
[19] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, 554 [43].
[20] Ibid 553-4 [41].
[21] Ibid 555 [48].
[22] Gungor and Minister for Immigration and Ethic Affairs [1980] AATA 32; (1980) 3 ALD 225; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1; HPZB and Minister for Home Affairs (Migration) [2019] AATA 439.
[23] Peko-Wallsend Ltd v Minister for Aboriginal Affairs [1986] HCA 40; (1984) 162 CLR 24, 39-40 (Mason J).
[24] Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87, 105-6.
[25] Victorian Building Authority v Tsaganas [2017] VCSA 248, [13] (Tate, Osborn and Kaye JJA).
[26] The Act ss 1(a), (d).
[27] The Amending Act s 1(b)(i).
[28] The Act s 197(ac).
[29] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2015, 5542; See also Interpretation of Legislation Act 1984 (Vic) s 35.
[30] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2015, 5542-3.
[31] Victoria, Parliamentary Debates, Legislative Assembly, 7 December 2016, 4825-6, 4829.
[32] Transcript of proceeding, 19 February 2020, 104.
[33] [2008] VSC 507; (2008) 21 VR 292.
[34] Building Act 1993 (Vic) ss 179(1)(a)-(b) as at 1 January 2004 (version no. 051).
[35] Building Act 1993 (Vic) ss 184(3)-(3A) as at 4 July 2016 (version no. 106).
[36] [1996] FCA 1683; (1996) 68 FCR 491.
[37] Transcript of proceeding, 20 February 2020, 145.
[38] Spear v Hallenstein [2018] VSC 169, [53], citing ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, 15 [27] (French CJ, Crennan, Kiefel and Keane JJ).
[39] (2014) 254 CLR 1.
[40] [1957] HCA 7; (1957) 96 CLR 261.
[41] [1959] HCA 40; (1959) 101 CLR 629.
[42] Spear v Hallenstein [2018] VSC 169, [56].
[43] Ibid.
[44] Mitchell v Latrobe Regional Hospital (2016) 51 VR 581, 595-6 [64].
[45] Ross v Building Practitioners Board [2017] VSCA 274, [52].
[46] Spear v Hallenstein [2018] VSC 169, [56].
[47] Ogden Industries Pty Limited v Lucas [1967] HCA 30; (1967) 116 CLR 537, 584.
[48] Kennedy v Medical Practitioners Board of Victoria [2008] VSC 507; (2008) 21 VR 292, 302 [39].
[49] Ibid 302 [42].
[50] [1996] FCA 1683; (1996) 68 FCR 491.
[51] Ibid 505.
[52] Ibid.
[53] Spear v Hallenstein [2018] VSC 169, [51], citing Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 23 (Gibbs J) and Abbott v Minister of Lands [1895] AC 425, 431.
[54] The Act sch 8 cls 2(2), 4(3)-(4).
[55] G F Heublein and Bro. Incorporated v Continental Liqueurs Proprietary Limited [1962] HCA 66; (1962) 109 CLR 153, 161.
[56] [2019] VSC 721, [21].
[57] The Act sch 8 cls 3(1)-(2).
[58] G F Heublein and Bro. Incorporated v Continental Liqueurs Proprietary Limited [1962] HCA 66; (1962) 109 CLR 153, 161-2.
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